Full Judgment Text
1
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1261 OF 2019
[@ SPECIAL LEAVE PETITION [C] NO. 21986 OF 2015]
ADANI GAS LIMITED & ANR. …..APPELLANTS
VERSUS
UNION OF INDIA & ORS. ……RESPONDENTS
J U D G M E N T
Leave granted.
2. The appellant company is registered under the Companies Act,
1956 and is involved in the business of setting up of Natural Gas
Distribution Networks within India. The dispute in this petition is with
regard to the Gas Distribution Network (for short ‘GDN’) in the cities of
Udaipur and Jaipur in the State of Rajasthan. Challenging the order
dated 18.05.2011 of the Government of Rajasthan whereby No
Objection Certificate (for short ‘NOC’) for laying down of Gas Network
pipelines granted in favour of the appellant had been withdrawn
Signature Not Verified
Digitally signed by
JAYANT KUMAR ARORA
Date: 2019.01.30
14:01:07 IST
Reason:
(including forfeiture of the commitment fees of Rs. 2 Crore deposited
by the appellant), and also the order dated 19.05.2011 of the Board
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rejecting the application of the appellant for authorisation of its
projects in Udaipur and Jaipur, as well as challenging the validity of
the Regulation 18 of the Petroleum and Natural Gas Regulatory Board
(Authorizing Entities to Lay, Build, Operate or Expand City or Local
Natural Gas Distribution Networks) Regulations, 2008 (for short
‘Regulations of 2008’), the appellant had filed Writ Petition No. 10028
of 2011 before the Rajasthan High Court, which has been dismissed
on 29.04.2015. Aggrieved by the same, this Special Leave Petition has
been filed.
3. Brief facts of this case are that on 19.11.2005 the Government of
Rajasthan invited parties to submit their bids for laying of Gas
Distribution Network in certain cities of Rajasthan, including the said
two cities of Udaipur and Jaipur. In response to the same, the
appellant submitted its Expression of Interest for the cities of Udaipur
and Jaipur. On 20.03.2006, the Government of Rajasthan informed
the appellant that it intended to grant NOC to the appellant for
undertaking Gas Distribution in the cities of Udaipur and Jaipur,
which was to be subject to certain conditions as mentioned in the
aforesaid communication dated 20.03.2006. Immediately thereafter
on 22.03.2006, the appellant company informed that it agreed to all
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the terms and conditions laid down by the Government of Rajasthan
in its communication dated 20.03.2006 whereby it intended to grant
NOC to the appellant. Then, on 24.03.2006, the appellant deposited
the commitment fees of Rs. 2 Crore. On 27.03.2006, the Government
of Rajasthan granted the NOC to the appellant company for Gas
Distribution in the cities of Udaipur and Jaipur. The appellant then
started its work of laying down the City Gas Development Network in
the said two cities.
4. The Petroleum and Natural Gas Regulatory Board Regulations
Act, 2006 (for short ‘Act of 2006) was notified on 03.04.2006, except
for the provisions of Section 16 of the said Act relating to
authorisation. On 21.07.2007, the appellant company made a request
for authorisation of its City Gas Distribution Project under Act of 2006
to the Chairman of Petroleum and Natural Gas Regulatory Board (for
short ‘the Board’). In the said communication, the appellant had also
provided the details of its existing projects in the country, namely at
Ahmedabad, Vadodara, Faridabad, Noida, Khurja, Lucknow, Udaipur
and Jaipur. The appellant had also submitted that in terms of
Sections 15 and 16 of Chapter IV of the Act of 2006, there was a
provision of ‘deemed authorisation’ of the existing City Gas
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Distribution Projects and in terms of the Act of 2006, a brief dealing of
all the projects under its implementation was also enclosed.
5. Then, on 24.07.2007, the appellant wrote to the Ministry of
Petroleum and Natural Gas requesting for authorisation of its City Gas
Distribution Projects under the Act of 2006 for all its gas projects,
including the ones of Udaipur and Jaipur. The Act of 2006 was
although notified on 03.04.2006, but came into force with effect from
01.10.2007, which was its appointed date. However, Section 16 of the
said Act, relating to ‘Authorisation’, was brought into force only with
effect from 15.07.2010.
On 30.10.2007 the Petroleum and Natural Gas Regulatory Board
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issued a press note, calling upon all the concerned entities involved in
or proposed to the laying, building, operating or expanding of a City or
Local Gas Distribution Network prior to the appointed date, i.e.
01.10.2007, to furnish the particulars of such activities to the Board
within six months from the appointed date. It was further provided
that in cases where no authorisation was granted to the entities that
initiated the specified activities before the appointed date, then such
entities were to apply for authorisation under Section 17 of the Act of
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2006. The Government of Rajasthan, then on 05.12.2007, intimated
the appellant of the press note dated 30.10.2007 and required the
appellant to submit the details, as were prescribed in terms of the said
press note. Two days thereafter, on 07.12.2007, the appellant
submitted the requisite details for the City Gas Distribution Projects of
Udaipur and Jaipur. Then, on 11.12.2007, the Government of
Rajasthan called upon the appellant to further submit the details to
the Board in terms of the press note dated 30.10.2007. In response to
the same, the appellant informed the Government of Rajasthan that
the said details had already been furnished on 07.12.2007.
7. On 19.03.2008, the Petroleum and Natural Gas Regulatory Board
Regulations, 2008 were notified. Pursuant thereto, on 31.03.2008 the
Board issued a notice to the appellant stating that the appellant did
not have the requisite authorisation by the Central Government in
terms of the proviso to Section 17(2) of the Act of 2006. The
Regulation 18 of the Regulations of 2008 has been challenged by the
appellant on the ground of being ultra vires the Act of 2006.
The appellant, however, on 28.08.2008 filed an application under
8.
Regulation 18 of the Regulations of 2008 for grant of authorisation of
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city Gas Distribution Network at Udaipur and Jaipur. In response to
the same, the Board issued a notice dated 19.11.2008 to the appellant
for oral hearing on 05.12.2008 and in the same meeting, the appellant
presented the status report as well as the investment made by the
appellant, and expressed its commitment to the Board to develop the
project and requested the Board to grant authorisation for the two
cities of Udaipur and Jaipur. The appellant, in the meantime,
continued its development work of laying down the gas pipelines.
Then, on 12.07.2010, by a notification of the Government, Section 16
of the Act of 2006 was brought into force. After coming into force of
Section 16, the Board, on 29.07.2010, issued notice to the appellant
to once again appear before the Board on 04.08.2010 to show cause
as to why the application under Regulation 18(1) of the Regulations of
2008 should not be rejected.
9. In the meantime, though no formal orders were passed by the
Board, on 28.02.2011, the Government of Rajasthan issued a notice to
the appellant stating that the appellant has failed to fulfil the
conditions laid down in the communications dated 20.03.2006 and
27.03.2006 issued by the Government of Rajasthan and thus the
NOCs were liable to be withdrawn and the commitment amount also
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liable to be forfeited. To the said notice, the appellant submitted its
reply to the Government of Rajasthan on 16.03.2011. Then, by an
Order dated 18.05.2011, the Government of Rajasthan withdrew the
NOCs granted to the appellant and forfeited the commitment fees of
Rs. 2 Crore deposited by the appellant on 24.03.2006. On the very
next date i.e. 19.05.2011, by two separate letters, the Board rejected
the applications of the appellant for authorisation of projects at
Udaipur and Jaipur, on the ground that the physical and financial
progress achieved by the appellant did not satisfy the proviso of
Regulation 18(2)(d) of the ‘Regulations of 2008’ and even after
instructions had been given by the Board vide press note dated
30.10.2007, the appellant had allegedly continued with laying of
pipelines, in violation of such directions given by the Board in the said
press note.
10. The appellant, then on 01.07.2011, wrote to the Board to bring to
its notice that the appellant has deemed authorisation in terms of
proviso to Section 16 of the Act of 2006 and the letters of rejection
dated 19.05.2011 of the Board to the appellant should be withdrawn.
To the said communication, there was no response received by the
appellant from the Board. Challenging the order dated 18.05.2011
8
issued by the Government of Rajasthan and the orders dated
19.05.2011 issued by the Board as well as the challenging the vires of
Regulation 18 of the ‘Regulations of 2008’, the appellant had filed Writ
Petition before the Rajasthan High Court, which was dismissed on
29.04.2015. The same is under challenge in this appeal.
For proper appreciation of the issues involved in this case the
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relevant provisions of the Act of 2006 and the Regulations of 2008 are
reproduced hereunder:
The Petroleum and Natural Gas Regulatory Board Act, 2006
– In this Act, unless the
2. Definitions.
context otherwise requires,
(a)…………;
(b)…………;
(c)…………;
(d) means an entity –
“authorised entity”
(A) registered by the Board under Section
15—
(i) to market any notified petroleum,
petroleum products or natural gas, or
(ii) to establish and operate liquefied
natural gas terminals, or
(B) authorised by the Board under section
16—
(i) to lay, build, operate or expand a
common carrier or contract carrier, or
(ii) to lay, build, operate or expand a city or
local natural gas distribution network;
(e)…………;
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(f)………….;
(g)…………;
(h)…………;
(i) “city or local natural gas distribution
network” means an interconnected network
of gas pipelines and the associated equipment
used for transporting natural gas from a bulk
supply high pressure transmission main to the
medium pressure distribution grid and
subsequently to the service pipes supplying
natural gas to domestic, industrial or
commercial premises and CNG stations
situated in a specified geographical area.
16. Authorisation. — No, entity shall —
(a)
lay, build, operate or expand any pipeline
as a common carrier or contract carrier,
(b) lay, build, operate or expand any city or
local natural gas distribution network, without
obtaining authorisation under this Act:
Provided that an entity,
(i)
laying, building, operating or expanding
any pipeline as common carrier or contract
carrier; or
(ii)
laying, building, operating or expanding
any city or local natural gas distribution
network,
immediately before the appointed day shall be
deemed to have such authorisation subject to
the provisions of this Chapter, but any change
in the purpose or usage shall require separate
authorisation granted by the Board.
17. Application for authorisation. –
(1) An entity which is laying, building,
operating or expanding, or which proposes to
lay, build, operate or expand, a pipeline as a
common carrier or contract carrier shall apply
in writing to the Board for obtaining an
10
authorisation under this Act:
Provided that an entity laying, building,
operating or expanding any pipeline as
common carrier or contract carrier authorised
by the Central Government at any time before
the appointed day shall furnish the
particulars of such activities to the Board
within Six months from the appointed day.
(2) An entity which is laying, building,
operating or expanding, or which proposes to
lay, build, operate or expand, a city or local
natural gas distribution network shall apply in
writing for obtaining an authorisation under
this Act:
Provided that an entity laying, building,
operating or expanding any city or local
natural gas distribution network authorised by
the Central Government at any time before the
appointed day shall furnish the particulars of
such activities to the Board within six months
from the appointed day.
(3) Every application under subsection (1) or
subsection (2) shall be made in such form and
in such manner and shall be accompanied
with such fee as the Board may, by
regulations, specify.
(4) subject to the provisions of this Act and
consistent with the norms and policy
guidelines laid down by the Central
Government, the Board may either reject or
accept and application made to it, subject to
such amendments or conditions, if any, as it
may think fit.
(5) In the case of refusal or conditional
acceptance of an application, the Board shall
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record in writing the grounds for such rejection
or conditional acceptance, as the case may be.
The Petroleum and Natural Gas Regulatory Board Regulations,
2008 :
“ 18. Entity not authorized by the Central
Government for laying, building, operating or
expanding CGD network before the appointed
day. –
(1)
An entity laying, building, operating or
expanding a CGD network at any time before
the appointed day but not duly authorized to
do so by the Central Government shall apply
immediately for obtaining an authorization in
the form as at Schedule I.
(2)
The Board may take into consideration the
following criteria while considering the
application for grant of authorization, namely :
(a)
the entity meets the minimum eligibility
criteria as 16[] specified in clauses (a) to (e)*
and (i) of subregulation (6) of regulation 5
before the appointed date and is possessing
all necessary statutory clearances,
permissions, no objection certificates from the
Central and State Governments and other
statutory authorities:
(b) an entity which is not registered under the
Companies Act, 1956 at the time of submitting
the application for grant of authorization shall
undertake to become a company registered
under the Companies Act, 1956:
Provided that the Board may exempt an entity
to register under the Companies Act, 1956 on
such conditions as it may deem appropriate;
(c)
a satisfactory assessment of the actual
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physical progress made and the financial
commitment thereof till immediately before the
appointed day in comparison with the entity’s
DFR appraised by the financial institution
funding the project. In case the project has not
been funded by any financial institution, the
Board may appraise the DFR. The DFR of the
entity should clearly indicate the specified
geographical area of the project and also
specify the coverage proposed for CNG and
PNG. In case upon scrutiny area, customer
segments, infrastructure requirements, etc.
proposed by the entity, the DFR is found to be
suboptimal and unacceptable, the Board may
not consider the case of the entity for issuing
the authorization;
(d) in respect of the actual physical progress
made and the financial commitment thereof
referred to in clause (c), a physical progress of
at least twenty five percent and a financial
commitment of at least twenty five percent of
the capital expenditure identified for the CGD
project as per the DFR immediately before the
appointed day may be considered as
adequate;
(e)
the entity should have arranged, by way of
acquisition or lease, land for CGS and
procured the necessary equipment for erecting
the CGS before the appointed day;
(f)
the Board reserves the right to get the
actual physical progress and the financial
commitment certified and depending upon the
progress achieved, the Board may consider
authorizing the entity for the authorized area—
(i)
as per the geographical area in its DFR,
(ii)
as per the geographical area actually
covered under implementation till the
appointed day; or
(iii)
the geographical area as specified by the
Board;
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(g) in relation to laying, building, operating or
expanding the CGD network, it is for the entity
to satisfy the Board on the adequacy of its
ability to meet the applicable technical
standards, specification and safety standards
as specified in the relevant regulations for
technical standards and specifications,
including safety standards and the quality of
service standards as specified in regulation
15:
(h) assessment of the financial position of the
entity in timely and adequately meeting the
financial commitments in developing the CGD
network project as appraised by a financial
institution and an examination of the audited
books of accounts of the entity;
(i) firm arrangement for supply of natural gas
to meet the demand in the authorized area to
be covered by the CGD network;
(j)
any other criteria considered as relevant by
the Board based on the examination of the
application.
(3) The evaluation of the application in terms of
the clauses (a) to (j) shall be done in totality
considering the composite nature and the inter
linkages of the criteria.
(4) The Board, after examining the application
in terms of the criteria under subregulation (2)
and also taking into account the requirements
in other regulations may form a primafacie
view as to whether the case should be
considered for authorization.
(5) In case of primafacie consideration, the
Board shall issue a public notice in one
national and one vernacular daily newspaper
(including webhosting) giving brief details of
the project and seek comments and objections,
14
if any, within thirty days from any person on
the proposal.
(6) The Board, after examining the comments
and objections, if any under subregulation (5),
may either consider or reject the case for grant
of authorization for the CGD network.
(7) In case it is decided to grant authorization,
the same shall be in the form at Schedule D;
(8) In case of rejection of the application, the
Board shall pass a speaking order after giving
a reasonable opportunity to the concerned
party to explain its case and proceed to select
an appropriate entity for the project in terms of
regulation 6.
(9) In case the entity is selected for grant of
authorization for CGD network,
(a)
the network tariff and the compression
charge for CNG shall be determined under the
Petroleum and Natural Gas Regulatory Board
(Determination of Network Tariff for city or
Local Natural Gas Distribution Networks and
Compression Charge for CNG), Regulations
2008;
(b)
the Board may consider grant of exclusivity
on such terms and conditions as specified in
the Petroleum and Natural Gas Regulatory
Board (Exclusivity for City or Local Natural
Gas Distribution Networks) Regulations, 2008;
(c) the entity shall abide by the technical
standards, specifications including safety
standards as specified under relevant
regulations for technical standards and
specifications, including safety standards;
(d)
the provisions under regulations 9, 13, 14,
58 [] and 16 shall apply to the entity.”*
(emphasis supplied)
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We have heard the learned Counsel for the parties and have
12.
perused the material on record.
13. The main issue for consideration in this appeal is whether the
Board was justified in rejecting the application filed by the appellant
under Section 17 of the Act of 2006 read with Regulation 18 of the
Regulations of 2008, after the provisions contained in Section 16 of
the Act of 2006 came into force on 12.07.2010 granting deemed
authorisation to those entities which had inter alia started laying and
building local Natural Gas Distribution Network prior to the appointed
date, i.e. 01.10.2007.
14. It is not disputed that in pursuance to the Government of
Rajasthan having, on 19.11.2005, invited bids for laying of Gas
Distribution Network, the appellant had applied for the two cities of
Udaipur and Jaipur and after acceptance of its application, the
appellant was granted NOC by the Government of Rajasthan on
27.03.2006. It is also not disputed that pursuant thereto, the
appellant has laid approximately 75 kms of pipeline in both the cities
16
of Udaipur and Jaipur, and in the process, spent a huge amount of
money relying on the NOC granted in its favour for such purpose. The
appellant asserts that is has completed the following activities in the
two projects of Udaipur and Jaipur:
“Udaipur:
a)
Received permission to cut roads vide letter
dated 4.6.2007, made payment of
Rs.14,28,900 towards road cutting bill and
provided Bank Guarantee to the Municipal
Council of Udaipur in this respect;
b)
Purchase of material and services for the
project, amounting to Rs.452.99 lacs;
c)
The Petitioners appointed M/s. International
Certification Services (Asia) Pvt. Ltd., for the
independent verification, inspection,
certification of the work done of the gas
distribution pipeline. This agency was
subsequently also authorised by the Board
vide communication dated 6.4.2010.
d)
The Petitioner had achieved mechanical
completion on various phases of the project
and accordingly has received Mechanical
Completion Certificated in this respect.
e)
The Petitioner has successfully laid 30093
mtrs. of gas distribution pipeline in Udaipur.
“Jaipur”:
a)
The Petitioner has received provisional
permission vide letter dated 7.3.2008 from
RIICO for laying 41.1 KM of the gas
distribution pipeline in Jaipur;
b)
Towards the provisional permission received
from RIICO the Petitioner has deposited
Rs.54,95,500.00 with RIICO; and
c)
Purchase of material and services for the
17
project, amounting to Rs.393.22 lacs:
d)
The Petitioner has successfully laid 22610
mtrs. of gas distribution pipeline in Jaipur.”
15. Section 17 of the Act of 2006, which Act was notified on
03.04.2006 (except Section 16) and came into force on 01.04.2007,
provides that an entity which is laying, building, operating or
expanding City or Local Natural Gas Distribution Network, or which
proposes to do so, has to apply in writing to the Board for obtaining an
authorisation under the Act of 2006. However, the entity authorised
by the Central Government for such activities would be required to
furnish the particulars of such activities to the Board within 6 months
from the appointed date. Sub Section 4 of Section 17 empowers the
Board either to reject or accept such application, which power has to
be exercised consistent with the norms and policy guidelines. Sub
Section 5 provides that in case of refusal or conditional acceptance of
an application, the Board shall record reasons in writing for such
rejection or conditional acceptance.
16. Section 16 of the Act of 2006, which came into force on
12.07.2010, relates to ‘Authorisation’. It puts an embargo to lay, build,
operate or expand in City or Local Natural Gas Distribution Network
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without obtaining authorisation under the Act. The Proviso (ii) of the
said section 16 provides for ‘deemed authorisation’ in case an entity
had been laying, building, operating or expanding any City or Local
Gas Distribution Network, immediately before the appointed date,
which shall be deemed to have such authorisation. In the present
case, the appointed date is 01.10.2007 when the Act of 2006 was
brought into force, except the provision contained in the Section 16 of
the Act of 2006, which came into force on 12.07.2010.
17. The Regulations of 2008 were framed before Section 16 of the Act
of 2006 came into force. Regulation 18 of the Regulations of 2008
provides that an entity, not authorised by the Central Government for
laying, building, operating or expanding CGD network before the
appointed date, shall apply for obtaining an authorisation in the form
as in Schedule I and the Board may take into consideration the
criteria for considering the application for grant of authorisation in
terms specified in clauses (a) to (j) of Regulation 18(2).
18. Regulation 18(2)(a) requires the entity to meet the minimum
eligibility criteria and other necessary clearances, as well as the
requisite NOCs. Clause (b) provides that the entity, if not registered
19
under Companies Act, 1956, shall undertake to become a company
registered under the Companies Act, 1956. The other factors in
clauses (c) and (d) as enumerated, relate to actual physical progress
made and the financial commitment thereon, and requires a physical
progress of at least 25 percent of capital expenditure before the
appointed date, which may be considered as adequate. Clauses (e)
and (f) provide that the entity should have arranged and procured the
necessary equipment for erecting the City Gas Distribution network
before the appointed date. Clause (g) provides for the entity to satisfy
the Board on the adequacy of its ability to meet the applicable
technical standards, specifications and safety standards as specified
in the relevant Regulations. Clause (h) provides for assessment of
financial position of the entity and Clause (i) provides for supply of
natural gas to meet the demand in the authorised area to be covered
by City Gas Distribution network. The last clause (j) provides for the
Board to consider any other relevant criteria based on the examination
of the application. All the aforesaid clauses are relevant factors and
the one which is put for consideration in the present case is Clause
(d), on which ground, the Central Government has primarily rejected
the application of the appellant.
20
It is noteworthy that the language used in Regulation 18(2) is
19.
that “the Board may take into consideration…………”. As such, the
language in which the Regulation has been couched does not make
the consideration in the said clauses, including Clause (d), to be
mandatory, but no doubt the same would be relevant considerations.
On a careful perusal of the order passed by the Board, we find that the
application of the appellant has been rejected for reasons mentioned
in para 5 of the impugned order dated 19.05.2011, which are
extracted hereunder:
“5. The committee found that you do not
satisfy the conditions laid down under the
Regulation 18(1) of the Petroleum and Natural
Gas Regulatory Board (Authorizing Entities to
Lay, Build, Operate or Expand City or Local
Natural Gas Distribution Networks)
Regulations 2008 on account of the following:
a)
Physical and financial progress achieved
by M/s. Adani Gas Limited before the
appointed day in the GA of Jaipur does
not satisfy the proviso 18(2)(d) of the
Regulation 18(1) of Petroleum and Natural
Gas Regulatory Board (Authorizing
Entities to Lay, Build, Operate or Expand
City or Local Natural Gas Distribution
Networks) Regulations 2008;
b) Even After clear instructions of PNGRB
th
vide Press Note Dated 30 October, 2007
to stop all incremental activity M/s. Adani
energy Limited had continued with laying
21
of MDPE Pipeline and thus violating the
directions of the Board.”
20. From the above, it is clear that the application of the appellant
has been rejected primarily on the ground of noncompliance of clause
(d) of Regulation 18(2) of the Regulations of 2008. It was incumbent
on the Board to take into consideration various factors as specified in
clauses (a) to (j) of Regulation 18(2) of the Regulations of 2008, and the
same has to be considered in the back drop of the fact that the press
note was issued on 30.10.2007 to stop all incremental activities and
as such it was necessary to consider whether the appellant could have
been faulted for noncompliance of clause (d) of Regulation 18(2), and
whether it was a mandatory requirement or merely one of the factors
to be considered along with all the other factors. Other relevant
aspects as contained in the other clauses have not been adverted to by
the Board while deciding the application of the appellant, which were
also equally significant. It was necessary to consider whether the
appellant is compliant of various other factors as provided in clauses
(a) to (j) of Regulation 18(2) of the Regulations of 2008. The non
compliance, if any, of clause (d) ought to have been considered in the
light of the press note dated 30.10.2007 which required stopping of all
incremental activities.
22
The peculiar factual position is that the Act of 2006 had been
21.
notified on 03.04.2006 but came into force on 01.10.2007 and the
NOC was issued on 27.03.2006, after the Government of Rajasthan
had invited open bids on 19.11.2005 for laying of City Gas
Distribution network in the cities of Udaipur and Jaipur, in which the
appellant had been selected. Besides depositing the sum of Rs. 2
Crores immediately towards commitment fee, the appellant had
thereafter incurred mammoth expenditure after it was successful in
the bids, which aspect has not been considered by the Board while
deciding the application of the appellant. In our considered view, the
same should not have normally been over looked. Besides the same, in
the factual circumstances of the present case, the provision of ‘deemed
authorisation’ contained in Proviso (ii) to Section 16 had also been
enforced on 12.07.2010 and it was necessary for the Board to have
considered whether it was a case where only certain safeguards were
required to be observed in view of the ‘deemed authorisation’.
22. We are of the firm view that it was also necessary for the Board to
have considered all these aspects and thereafter to have decided the
application relating to authorisation/conditions to be imposed under
23
the Act, if any, required. Besides this, detailed replies had been
submitted by the appellant before the Board, which also ought to have
been considered. Further, the requirement under the Act/Regulations
is for grant of personal hearing to the appellant before deciding its
application and if personal hearing was given, to have discussed the
same in the order, which aspect has also been ignored by the Board.
In view of the aforesaid discussion, we are of the opinion that
23.
there was illegality committed by the Board in deciding the application
of the appellant while passing the order dated 19.05.2011, and as
such the same deserves to be quashed. We also hold that in the
aforesaid factual background, the decision of the State Government to
revoke the NOC vide order dated 18.05.2011 was also highly unfair
and unjust in as much as the reply of the petitioner dated 16.03.2011
in response to the notice dated 26.02.2011 has not been dealt with by
the Government of Rajasthan while passing the said impugned order
dated 18.05.2011. As such, the same does not stand to reason, which
also deserves to be quashed.
Accordingly, we allow this appeal to the extent that the order
24.
dated 18.05.2011 passed by the Government of Rajasthan and the
24
order dated 19.05.2011 passed by the Board are quashed. The Board
is directed to take a fresh decision in the matter within 4 weeks from
today, in the light of the provision of ‘deemed authorisation’ and other
observations made hereinabove, after giving opportunity of hearing to
the appellant. The appellant is given liberty to file fresh written
submissions before the Board within 10 days from today.
No orders as to cost.
………………………..J.
[ARUN MISHRA]
………………….…….J.
[VINEET SARAN]
New Delhi
th
29 January, 2019
25
ITEM NO.1501 COURT NO.5 SECTION XV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition for Special Leave to Appeal (C) No. 21986 of 2015
ADANI GAS LIMITED & ANR. Appellant(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
Date : 29-01-2019 This matter was called on for Judgment today.
Counsel for the
parties Mr. Gaurav Juneja, Adv.
Mr. Divyansu, Adv.
Mr. Aayush Jain, Adv.
for Khaitan & Co.
Mr. Munawwar Naseem, Adv.
Mr. Palak Mishra, Adv.
Mr. Utsav Trivedi, Adv.
for M/S. Karanjawala & Co.
Mr. Amit Sharma, Adv.
Mr. Ankit Raj, Adv.
Ms. Ruchi Kohli, Adv.
Ms. Iti Agarwal, Adv.
Ms. Nikita Choukse, Adv.
Ms. Rinali Batra, Adv.
for DSK Legal
Ms. Ruchi Kohli, AOR
Mr. Senthil Jagadeesan, AOR
Mrs. Anil Katiyar, AOR
Hon’ble Mr. Justice Vineet Saran pronounced the non-reportable
Judgment of the Bench comprising Hon’ble Mr. Justice Arun Mishra
and His Lordship.
Leave granted.
The application(s) for intervention is/are dismissed.
26
The appeal is allowed to the extent indicated in the signed
non-reportable Judgment.
Pending interlocutory application(s), if any, is/are disposed
of.
(JAYANT KUMAR ARORA) (JAGDISH CHANDER)
COURT MASTER BRANCH OFFICER
(Signed non-reportable Judgment is placed on the file)